1420930 (Refugee)

[2016] AATA 4771

1420930 (Refugee) [2016] AATA 4771 (1 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420930

COUNTRY OF REFERENCE:                  Brazil

MEMBER:Nicola Findson

DATE:1 December 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 December 2016 at 1:31pm

CATCHWORDS

Refugee – Protection visa – Brazil – Fear of harm from former employer – Credibility issues – Delay in protection application – Relocation available to Schengen and Mercosure countries

LEGISLATION

Migration Act, 1958 ss.36(3), 36(2)(aa), 36(2)(b) and (c)

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155 at 169-70

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Brazil, applied for the visa [in] August 2014. [In] November 2014, the delegate refused to grant the visa.

   BACKGROUND AND PROTECTION CLAIMS

3. The Tribunal has before it the Departmental and Tribunal files relating to the applicant.  The Tribunal has also had regard to the material referred to in the delegate’s decision.

4. The applicant arrived in Australia as the holder of a [Visa 1] [in] March 2011.  He was granted a further [Visa 1] [in] October 2011 and again [in] February 2012.  He was refused a [Visa 2] [in] May 2013 and had his [Visa 1] cancelled [in] November 2013.  The Migration Review Tribunal affirmed the [Visa 1] cancellation decision on 14 October 2014.

5. The applicant returned to Brazil [in] December 2012, and re-entered Australia [in] January 2013.

6. In his protection visa application, the applicant states he was born in [Town 1], Brazil in [year].  He states he lived at an address in [Town 1] from his birth to January 1999.  He states he lived in [Town 2] between January 1999 and December 2001; [Town 3] between February 2002 and July 2004; and Sao Paolo [Town 4] between August 2004 and April 2011.  The applicant states he completed a total of [number] years of formal education, in [year], after which he attained the qualifications of [qualification name]. The applicant states his parents and [siblings] continue to live in Brazil.

7. In his protection visa application, he claims he left Brazil because there was a risk to his life. The claims he set out in the application, were difficult to decipher.  He states he was involved with “…creating associations of people with common purposes… and showing the way to do things different without spending money only organising the lives of producers… I highly politicized and participating in political party in Brazil with the same foundations that believe in people development, and major wholesalers predominate in the region was a single owner and with the movement being born we started to negotiate directly with the seller by volume of purchases by reducing profit margins him he got mad, called me for a first conversation I imagined to be a conversation about business, he threatened to do me I leave everything to the business because it was messing up his life and I responder excuse its my job so he turned and said let’s see, it started in mid-2009 and increasing pressure in 2010 when my party appointed me to run for the position of [official] in the municipality of [Town 4] this was a drop of water to turn my life a whole hell was one of the most quoted of the municipality to win the election, it received all messages and phone call constantly at all the time of day or night, since I suffered trying to hit in broad daylight for day care only to scare me one day a policeman came up to me and said if I were you would be away to a distant place that nobody knows, they will not kill you now because everyone knows that besides you know very well about contracts with the city where you know there’s flaws, I gave up the seat to run for [official] just supporting another friend to have it like he won the election and I would be the assessor him he had made the worst police follow me and steal my car and disappear.  I am here to live”.

8. As to questions asking what he fears will happen to him if he goes back to Brazil and who they thinks may harm him, the applicant states that he fears both himself and his parents will be killed at the hands of the police, the owner of a company he worked for and “very powerful and influential politicians”.

9. The applicant states that the authorities would not protect him if he returns to Brazil because they are corrupt and dangerous and “they communicate with each other and have a parallel power”.

   The Delegate’s Decision

10. In a decision record dated [in] November 2014, the delegate rejected the applicant’s application for a protection visa. 

11. The Tribunal notes from the delegate’s decision record, that the applicant was offered the opportunity to attend an interview to further present his claims and to provide further information to support them, however, he did not do so.

12. The delegate made relevant findings on the applicant’s statutory effective protection.  In particular, the delegate found the applicant has access to effective state protection in Mercosul countries[1].  The delegate went on to find that the applicant has a present right to enter and reside in any of the Mercosul countries. The delegate also noted that the applicant has the right to enter the 26 Schengen countries on a visa free (visa waiver) basis. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant because the delegate found the applicant has not taken all possible steps to avail himself of the right to enter and reside, whether temporarily or permanently, in any of these countries.

    [1] Mercosur or Mercosul is a trading block composed of Argentina, Brazil, Paraguay, Uruguay, and Venezuela, with associate members Bolivia, Chile, Columbia, Ecuador and Peru.

13. Given his findings on the applicant’s statutory effective protection, the delegate did not consider it necessary to make a credibility finding regarding the applicant or his claims.  He did note, however, his grave reservations in relation to the credibility of the applicant.  In particular, the delegate noted that his failure to attend the Departmental interview, the delay in the lodgement of his application and his return visit to Brazil after arrival in Australia were of significance to his credibility.

    Application for review

14. The applicant applied to the Refugee Review Tribunal on 20 December 2014, for a review of the delegate’s decision.  The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.

15. The applicant appeared before the Tribunal on 10 December 2015, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portugese and English languages.

16. The applicant was represented in relation to the review by his registered migration agent.  The representative did not attend the Tribunal hearing.

17. The applicant provided background about his family, education and employment history.  He confirmed he was born in [Town 1] in [year].  He said he has never married.

18. He said his parents and [siblings] remain in Brazil. His father is a small farm owner and [occupation] and his mother is a housewife and they live in [Town 1].  He said he has [siblings] also living in [Town 1].  He said he also has a [sibling] living in Brasilia.  He said he speaks with his family on a weekly basis.

19. The applicant said he completed a [tertiary course] at [an educational institute] in Sao Paolo, after finishing his primary and secondary schooling. 

20. He said he has lived elsewhere in Brazil, for education and employment purposes, including [Town 2], [Town 3], and [Town 4] in Sao Paolo. 

21. In [year], when he had finished studying, the applicant started working for a company called [Company 1], which was a [details deleted].  It was located about 100 kilometres from Sao Paolo.  He started working in [a specific area].  In 2009, he took on a supervisory role in a company called [Company 2], which was a company that supplied [a certain product].  He said he worked for this company until 2011.

22. The applicant said he had no family members in Australia.

23. The applicant confirmed he arrived in Australia in April 2011, on [Visa 1].  He completed an English course when he arrived in Australia.  In 2014, he started a [course], but he only completed one Semester of that course.  After that, he was offered work and made application for a [Visa 2].  He said he failed his IELTS test [a few] times and, as a consequence, was refused [Visa 2].  He said his [Visa 1] was also subsequently cancelled.  The decision to cancel his visa was affirmed on review by the Migration Review Tribunal.

24. The applicant told the Tribunal that he worked [for certain] companies after he arrived in Australia.  He said however, that he has not had work rights for about a year, and been forced to live off his savings during this time. 

25. The Tribunal sought to confirm the basis for the applicant’s claims for seeking protection in Australia.  He said that while he was working for [Company 1], he reported to [Mr A] who was the owner and director of the business.  He said this was the biggest [company of its kind] in the city.  During the time he worked there, the [company] had a monopoly over others and it favoured particular producers.  In 2007 and 2008, the applicant said he wanted to help [other smallholders], and so organised the [others] to set up a new [company], which sold different products to those of [Company 1].  He said [Mr A] considered that this [company] had an impact on his business and “affected his pocket”.  He said in about 2009 or 2010 (later clarified to be 2009), [Mr A] summonsed the applicant to his office.  He told the applicant to stop what he was doing or he “would do something”.  When the applicant asked what he meant, he was told “you’ll see”.   The applicant said at this time, he did not realise what he was doing was a big issue and he was not concerned about what had been said to him.  He said he thought it was just a normal conversation with his boss.  He stayed on with [Company 1] for about 6 more months after this meeting. However, he said that after their meeting, [Mr A]’s demeanour toward him changed and he did not treat him as nicely as he used to. 

26. The applicant said that after he left [Company 1], he took up a new role in a different company ([Company 2]).  He said he also continued to assist [other smallholders] in [Town 4], and because of this work he became involved in politics.  He said he became involved with PSOL – the Socialism and Freedom Party - a new political party.  He said PSOL is a social party that advocates for people’s freedom and liberty, and is a dissident party of the current ruling regime.  He said many ex-members of the labour party formed PSOL.  The applicant told the Tribunal he joined this party, because he realised he could do more to help the [smallholders] if he did.  He said he became one of [number] members of the party in [Town 4] and was also asked to nominate himself to become a member of parliament.  The applicant told the Tribunal that around this time, [Mr A] started to call him many times and threatened him “Don’t stay here.  You have to leave.  You don’t know what I am able to do”.  He said he was also approached in the street by one of [Mr A]’s right hand men and warned to leave the city.  The applicant said after these threats, he made the decision to not proceed with his political ambition, but stayed in Sao Paolo to support and promote another [member]. An election was held in 2010, but the seat was not won by this person.  After this, the applicant decided to leave Brazil and come to Australia. He said the fastest way to leave Brazil was to apply to come to Australia [on Visa 1]. 

27. When asked what his plans were when he arrived in Australia, the applicant said that he wanted to be away from his stressful situation in Brazil for one or two years.  He said he did not know if he would go to New Zealand, Australia or Canada.  He said he considered where the weather would be best, and settled on Australia.  He said he always intended returning to Brazil, and did so at the end of 2012, for about four or five weeks, to see what was happening there.  He said he stayed with his parents in [Town 1], his home city, when he returned to Brazil.

28. When the Tribunal queried why he was fearful of returning to Brazil, the applicant responded that he will suffer and he does not know whether he and his family will survive or not.  He said [Mr A] had given him a warning, which he now understood to be a serious warning.  He said that [Mr A] is highly regarded and hires men – generally ex-policemen - to carry out his dirty work.  He said [Mr A] has 2-3 men alongside him, to protect him.  He told the Tribunal that he had two terrible experiences in Brazil.  He said when he went to Sao Paolo on one occasion his car was stolen.  He said he went to police station and lodged a report about the stolen car.  He told the Tribunal that he was approached in the street by [Mr A]’s “protector” and warned: “You’re never going to forget this”.  You have to leave this city”.   He said that when he was again in Sao Paolo, 10 days before he left Brazil to come to Australia, his car was again stolen.  He told the Tribunal that after having contact in the street with [Mr A]’s “protector”, he realised there was a connection between [Mr A] and his stolen cars.  He said that he has come to understand [Mr A]’s threat. 

29. The Tribunal asked about the threats that the applicant received.  He said that he received many telephone calls from [Mr A].  The applicant told the Tribunal that [Mr A] telephoned him constantly and told him not to stay in Sao Paolo.  He said he was also stopped by [Mr A] in the street and told “You have to leave.  You don’t need to be here”.

30. The Tribunal asked the applicant what he feared would happen to him if he returned to Brazil.  He replied that he is really concerned that either he or his parents will be killed by [Mr A].  The applicant said that when he returned in December 2012, calls were made to his father’s house.  He said the caller on the phone said:  “What is he doing here?  Tell him to leave”.  He said that in Brazil, citizens are easily monitored.  He said police officers share information with criminal organisation, the primero commando da capital (PCC), and a person’s movements are always known.  The applicant said that in his situation, he cannot be protected by the police.  He also said that when you have money, you have power and therefore protection. 

31. The Tribunal asked why [Mr A] would be interested in him after all this time.  The applicant told the Tribunal that [Mr A] knows he has a strong mind and if he returns to Brazil he will do the same thing and help the [smallholders].  But, if he does, he doesn’t know if he will survive.  The applicant told the Tribunal that everything would be alright if he said “okay, I will forget everything”.  But, he said he considers it his mission in life to help the [smallholders], and he would continue to do this if he returned to Brazil. 

32. The Tribunal suggested to the applicant that, if he had wanted to, [Mr A] had every opportunity to harm him before he left Brazil.  By way of response, the applicant said that he did not want to change and [Mr A] still might hurt him.

33. The Tribunal asked the applicant whether he could relocate to some other location in Brazil.  The applicant responded that he could not because communication between the authorities in Brazil is very strong.  He said that he was tracked down in his home town in the centre of Brazil, 2000kms from the problem, when he returned to Brazil in 2012.

34. The applicant told the Tribunal that his family had not had any problems with [Mr A] or anyone else since he had returned to Australia at the beginning of 2013. 

35. The Tribunal asked the applicant why he had not mentioned any of his protection claims to the Department or the Migration Review Tribunal in any of his previous visa applications or visa cancellation proceedings.  The applicant said he did not know he had to mention his problems.  He said he did not consider that his problems were relevant to the other visa applications.  The Tribunal indicated to the applicant that it might consider he was not fearful of returning to his home country because he had not raised his claims sooner with his dealings with the Department or Tribunal.  The applicant said that this was his mistake.

36. When asked why he did not contact the Department to arrange an interview to discuss his claims, the applicant told the Tribunal that his agent had advised him that the facts in his matter would be provided to the Department and there was no need for him to attend an interview. 

37. When asked if there was any other reason whatsoever he feared returning to Brazil, the applicant replied that his big concern is to safeguard his life as well as the lives of his parents. 

38. As to the apparent right he has to enter and reside in other countries which have an agreement with the Federative Republic of Brazil, including other Mercosur member countries as well as countries across the European Union, to escape the harm he fears in Brazil, the applicant said he could not go and live in another country within south America when those countries are in a worse state than Brazil.  He said that they have social, political, economic, violence, crime and safety issues.  He said he would not survive.  He also said that it would not be that easy to live in another country without his family.  The applicant did not respond when the Tribunal pointed out to him that he was young and educated and spoke English and had demonstrated that he has the skills to live elsewhere.  When asked if he knew anyone that lived in other Mercosur member countries, the applicant replied that he knows of people who have lived in those other countries, but that they are now in Australia.

39. The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to his comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant had the opportunity to seek an adjournment before providing a response to the information.

40. The Tribunal put to the applicant that:

    ·He has been in Australia for a long time and in that time he has been granted [Visa 1]; applied for [Visa 2]; and now he has made application for a protection visa after a considerable delay.  This sequence of events might lead the Tribunal to think that the applicant’s main objective since 2011 has been to remain in Australia, and that this application is his last ditch effort to do so.  It also casts doubt over his credibility and claims. 

    ·He returned to Brazil during his time in Australia.  This preparedness to return to Brazil casts doubt over the truth of his claims and might lead the Tribunal to think that he is not genuinely fearful of returning there.

    ·He failed to attend an interview with the Department [in] November 2014.  This might lead the Tribunal to question whether he is genuine about his fear of returning to Brazil.

    ·There is no reference to his claimed problems in any of his dealings with the Department or the Migration Review Tribunal before or during the cancellation of [Visa 1] at the end of 2013.  The Tribunal considers this omission significant and that it raises serious questions about the credibility of his claims.

1. The applicant requested, and was granted, time to respond in writing to the information put to him by the Tribunal.

   Post hearing submissions

2. After the hearing, the applicant provided the Tribunal with his comments in relation to the information put to him by the Tribunal.  As to his visa history and the delay in applying for a protection visa, the applicant stated that he planned to stay in Australia for one or two years and then return to Brazil, and his [Visa 1] enabled him to do this.  He stated that he returned to Brazil [in] December 2012 and remained there until [date] February 2013, to see his family and what was going on in his home country.  He said he came back to Australia to commence studying a [tertiary course], in order to enhance his [existing tertiary] qualification. He said in the middle of his course, in mid-2013, he received a proposal for sponsorship at a [workplace] in the [location], which he was excited about and which would have contributed to his professional experience.  However, he was unable to score the minimum required score in his IELTS test.  He stated he has applied for different types of visas and “tried all possible ways to stay for a while here and then return to my dream country”.  He stated that he travelled back to Brazil to “check how it was”, but found it to be as dangerous as before he left, so decided to return to Australia again.  He said that he had not raised his protection visa application claims because he did not think it was important to mention them in his [Visa 1] applications and also that no one asked him about “this event”.   He stated he did not attend the scheduled interview with the Department because he was sick with a virus and he thought he would be offered a second hearing.

   RELEVANT LAW

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

6. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

7. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

8. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

9. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

10. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

11. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

12. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

13. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention.

19. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

20. The Tribunal has considered the documentary evidence provided to the Department by the applicant and referred to in the delegate’s decision record.  This includes a copy of the passport issued to the applicant by the Republic of Brazil.  Having regard to this evidence, the Tribunal finds that the applicant is a national of Brazil. 

21. On the basis of the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is Brazil.

    Third Country Protection

22. Under s.36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen.

23. As discussed at the hearing, a key issue in this case may arise from the applicant’s apparent right to enter and reside in other countries which have an agreement with the Federative Republic of Brazil, including other Mercosur member countries as well as countries across the European Union.

24. The Tribunal considered restricting those issues dispositive to s.36(3).  However, the Tribunal has otherwise decided to examine those issues dispositive to the applicant’s credibility in so far as they are relevant to the Refugees Convention and to s.36(2)(aa).

    Assessment of claims

25. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Section 5AAA of the Act provides it is the responsibility of the non-citizen to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

26. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

27. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

28. There are a limited number of claims regarding the applicant and his circumstances that the Tribunal accepts as credible.  The Tribunal accepts that the applicant was born in [Town 1], Brazil, and that his parents and siblings remain in Brazil.  The Tribunal accepts that the applicant commenced working for [Company 1] while he was studying and continued in this employment after he graduated with his relevant qualification. The Tribunal is prepared to accept that the applicant helped [smallholders] in the [Town 4] area set up a [company] to pool their resources to achieve a better financial outcome.  The Tribunal is also prepared to accept that as a result of working with [smallholders], the applicant became aligned with the [Town 4] branch of the PSOL political party.

29. However, after reviewing all of the evidence before it, and in particular the oral evidence given by the applicant at the hearing, the Tribunal does not accept the applicant’s claims regarding the dispute with [Mr A] and the problems that he has experienced as a result are credible for the reasons discussed below. 

30. The applicant’s evidence at the hearing, about his dispute with [Mr A], was vague and undetailed.  In particular, the Tribunal found the evidence concerning his alleged meeting with [Mr A], about his involvement with the [smallholders’] [company], changing and lacking in detail.  For example, the applicant gave evidence that the meeting took place in 2009 or 2010. Given that the applicant had previously told the Tribunal that he was not working for [Company 1] in 2010 and that he claims to have fled his home country on the basis of the threats [Mr A] made to him, the Tribunal would have expected some consistency in his evidence as to the timing of this significant meeting. The applicant’s evidence about why [Mr A] would target him for harm was also limited in detail and unpersuasive.  The applicant gave evidence that he told [Mr A] that the [smallholders’] [company] was supplying different products and that it would not affect his business; that he was not left with the impression from [Mr A] that there would be any problems for him assisting the smaller [company]; and that he remained working for [Mr A] at [Company 1] for a further six months after he was summonsed to meet with him.  The Tribunal found the applicant’s description of the alleged threats against him by [Mr A] also to be lacking in detail and unpersuasive. For example, the applicant made general statements to the effect that [Mr A] threatened him many times over the telephone and that his “protector” approached him in the street and warned him to leave the area. But aside from expressing the general gist of the threats, which was that he should leave the city of Sao Paolo, the applicant could not provide any specific details or context, such as when and how often he received the threats and what else was said during these conversations.  Even allowing the time that has passed as well as the strong English language capacity demonstrated by the applicant at the hearing, this lack of detail indicates that the applicant’s fears of [Mr A], or anyone else, were not genuinely held.  It is reasonable to expect of an applicant who claims he has been subjected to threats by a person to a great deal more knowledge.  The Tribunal has taken into account the stresses that applicants can experience in a Tribunal hearing environment, but it still finds that the applicant’s evidence was vague and undetailed in many respects and that it detracts significantly from his overall credibility.

31. The applicant gave evidence that he continued to work for [Mr A], and then after leaving [Company 1], remained in Sao Paolo up until the time he departed for Australia, despite the alleged threats against him.  On the basis of this evidence, the Tribunal does not find it credible that the applicant holds a genuine fear for his life, at the hands of [Mr A] or anyone else, if he returns to Brazil.

32. The Tribunal finds that the applicant’s preparedness to return to Brazil at the end of 2012, to stay with his family in [Town 1] for almost 5 weeks, casts doubt over truth of his claims.  The Tribunal is of the view that he would not have returned to Brazil to see his family, or indeed at all, if he was genuinely fearful for his life.  

33. The Tribunal found the evidence that there had been no threats made, or actual harm suffered, by the applicant’s family, while the applicant has been in Australia, also undermines the applicant’s claim that he fears serious harm from [Mr A], or from anyone else if he returns to Brazil.  Given the applicant’s evidence, the Tribunal has difficulty accepting that his parents would not have been targeted by [Mr A] over the time he has been in Australia, if there were genuine fears for his as well as their safety.

34. The Tribunal notes that the applicant did not apply for a protection visa until [August] 2014, even though he first arrived in Australia in April 2011, and he claims that he began receiving threats in 2009.  Further, the applicant has applied for [Visa 1] as well as [Visa 2] to prolong his stay since he arrived in Australia.  The Tribunal does not accept that the applicant did not know or think it important to mention his protection claims to either the Department or the Migration Review Tribunal sooner than he did.  As the Tribunal put to the applicant, his delay in applying for a protection visa casts doubt over his credibility and claims and may lead the Tribunal to think that this application is his last ditch effort to remain in Australia. In the hearing, the applicant explained that he did not consider that his problems were relevant to the other visa applications and that this was his mistake.  In his submission to the Tribunal after the hearing, the applicant further explained that he tried all possible ways to stay for a while in Australia and then return to his dream country.  He also said with his last [Visa 1], he did not think it was important to mention the situation of the threats that he had suffered in Brazil and that no one asked him about this event.  Having considered all of the evidence, including the vague claims of what happened to the applicant in Brazil and why he returned there, the Tribunal does not accept his explanation and finds the delay between the applicants’ arrival in Australia and the lodgement of his protection visa application more than three years and several visa applications later detracts from his credibility.  The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

1. In addition, the Tribunal found the applicant’s failure attend an interview with the Department [in] November 2014, and the reasons given for not attending, undermines his claims and credibility.  The Tribunal would have expected the applicant to take up an opportunity to present his claims in greater detail at a Departmental interview, if he was genuine about his fear of returning to Brazil.

2. Given these fundamental credibility concerns, the Tribunal does not accept that that the applicant is of any adverse interest to [Mr A], the Brazilian police, or anyone else.  The Tribunal does not accept that the applicant received any threatening telephone calls from [Mr A] or was approached by [Mr A]’s “protector” and given a warning in the street.  Nor does the Tribunal accept that there is any connection between [Mr A] and the theft of the applicant’s cars in Sao Paolo, if indeed they were stolen at all. The Tribunal does not accept that when the applicant returned to Brazil at the end of 2012, his father received further threats over the phone.  The Tribunal finds that the chance that the applicant will face serious harm at the hands of [Mr A] or anyone else (for any reason, Convention or non-Convention) upon return to Brazil in the reasonably foreseeable future to be remote and not real.  For the same reasons, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil that there is a real risk that he will suffer significant harm from [Mr A], the Brazilian police or anyone else.

   Cumulative assessment

3. Considering all the applicant’s claims cumulatively, the Tribunal finds that he does not face a real chance of persecution in the reasonably foreseeable future in Brazil for any reason (Convention or non-Convention related).  His fear of persecution is not well-founded.

4. Considering all of his claims cumulatively, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil that there is a real risk that he will suffer harm.

5. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution if he returns to Brazil now or in the reasonably foreseeable future.

   Conclusion

6. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Nicola Findson
   Member